Table of Contents
RESOLUTION LABS, LLC GENERAL TERMS AND CONDITIONS OF SALE
These General Terms and Conditions of Sale ("Terms") shall govern all orders for and purchases of products and services from RESOLUTION LABS, LLC ("RL"), including installation of equipment, unless other terms are specifically designated by RL to apply to a specific product or service, or RL and buyer have entered into a master purchase agreement or other written agreement that expressly provides that its terms supersede and replace these Terms with respect to the products or services covered by the master purchase or other agreement (See Section 12, SOLE TERMS, INCONSISTENCIES, ORDER OF PRECEDENCE).
1. PRICE. The price for any product or service (hereinafter collectively "Product") shall be the price stated in RL's quotation to buyer for the Product ("RL's Quotation") or, if RL has not issued a quotation, RL's list price of the Product at the time RL receives buyer's purchase order. RL's quotations are valid for 30 days from the quotation date unless otherwise stated in RL's Quotation. If RL's price is stated by reference to a price list, then the price shall be RL's list price in the jurisdiction in which the Product is to be delivered or performed in effect at the time RL receives buyer's purchase order. Prices stated are exclusive of all taxes, fees, licenses, duties, levies, or other governmental assessments ("Taxes") and, unless otherwise stated in RL's Quotation, shipping and handling charges, freight, and insurance. All Taxes related to Product shall be paid by buyer (other than taxes assessed against RL's net income), or in lieu thereof, buyer shall provide RL with a tax exemption certificate acceptable to the relevant taxing authorities. Taxes and other charges payable by buyer may be billed as separate items on RL's invoice.
2. PAYMENT TERMS; COLLECTION COSTS; SECURITY TERMS.Payment terms are net 30 days from date of RL's invoice. If RL deems buyer to be or to have become uncreditworthy, RL shall have the right to require alternative payment terms, including without limitation sight draft, letter of credit, or payment in advance. Payment for partial shipments shall be based on unit or prorated prices, and payment for partial installation(s) shall be based on percentage of completion of installation, as reasonably determined by RL. If payment is not received by the due date, RL may assess and buyer agrees to pay a late payment charge at the rate of 1% per month (12% per year) or the maximum legal rate, whichever is less, of the amount due from the due date to the date of payment.
If RL retains a collection agency or attorney to collect unpaid amounts, RL may invoice buyer for, and buyer will pay, all reasonable costs of collection, including without limitation reasonable attorneys' fees. Buyer hereby grants to RL and RL reserves a purchase money security interest in all tangible Product purchased from RL, and in any proceeds thereof, for all amounts owing to RL for or related to such Product. Upon request by RL, buyer shall sign any reasonable documents required for RL to perfect such security interest and, to the fullest extent permitted by law, buyer hereby expressly grants RL authority and a limited power of attorney to file financing statements and amendments thereto for and on behalf of buyer for such Product and any proceeds thereof. Payment in full of all amounts owed for and related to such Product shall release such security interest in the Product and proceeds.
4. ACCEPTANCE OF ORDERS, DELIVERY, TITLE AND RISK OF LOSS, INSTALLATION. RL may accept or reject any buyer purchase order for Product in whole or in part. If a purchase order is accepted, RL will use reasonable efforts to ship tangible Product or perform services, including equipment installation if agreed to by RL, subject to the purchase order within a reasonable time after ordered, or, if a shipment, service commencement or installation date is indicated in RL's Quotation or otherwise agreed upon in writing by an authorized representative of RL, on or before such date. RL may make delivery in installments, and each installment shall be deemed to be a separate sale. RL may render a separate invoice for each installment, which invoice shall be paid without regard to prior or subsequent installments. Unless indicated otherwise in RL's Quotation, title and risk of loss with respect to all Products except Products that are software or services, and risk of loss with respect to software, shall pass from RL to buyer upon transfer of possession of the Product to a common or other third- party carrier at RL's facility. If RL has undertaken to install a Product, it is buyer's responsibility, at buyer's cost, to have the installation site prepared and available for installation free of hazardous or unsafe conditions and, unless RL otherwise agrees, to move the Product, uncrated, from the buyer's delivery dock or receiving location to the tabletop or other place of installation. Buyer shall not assign RL personnel to work in biosafety level 3 or level 4 laboratories without prior written notice to RL and RL's consent.
5. CANCELLATION AND DEFERRAL. BUYER MAY NOT CANCEL ANY PURCHASE ORDER. However, unless otherwise stated in RL's Quotation, buyer may defer the shipment date one time for up to 60 days for instruments and other hardware, and up to 30 days for reagents, consumables and other tangible Product, by giving written notice to RL at least 30 days before the scheduled shipment date for instruments and other hardware, and at least 10 days before the scheduled shipment date for other Product.
6. REJECTION AND RETURN OF GOODS. Any claims for damaged, missing, or defective Product must be reported in writing by buyer within 15 days from the date of buyer's receipt of the Product. In addition, buyer must promptly return a rejected Product to RL, C.O.D., unused and in a condition no worse than that delivered to buyer and in the Product's original containers and packing material, accompanied by a valid return authorization number obtained from RL. RL may refuse any Product not timely rejected or sought to be returned without a valid return authorization number. For any valid claim timely made, RL, at its option, may repair the Product or replace the Product with an identical or substantially similar Product. Shipping charges will not be credited. THESE ARE BUYER'S SOLE AND EXCLUSIVE REMEDIES FOR DAMAGED OR MISSING PRODUCT, AND, EXCEPT FOR EXPRESS WRITTEN WARRANTY RIGHTS, FOR DEFECTIVE PRODUCT. RL may require that buyer sign and deliver a properly completed certificate of decontamination prior to returning any Product.
7. LIMITED WARRANTY. RL makes only those warranties with respect to Product expressly identified as "warranties" and set forth in RL's current operating manual or catalog, or in a specific written warranty included with and covering Product, if any. Warranties are made only to the buyer purchasing the Product directly from RL, are not transferable and do not extend to the benefit of any other person or entity, unless otherwise expressly stated in writing by RL. ANY PRODUCT NOT COVERED BY AN EXPRESS WRITTEN WARRANTY IS SOLD AND PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, STATUTORY, EXPRESS OR IMPLIED. Any description of Product recited in RL's Quotation is for the sole purpose of identifying Product, and any such description is not part of any contract between RL and buyer and does not constitute a warranty that Product shall conform to that description. Any sample or model used in connection with RL's Quotation is for illustrative purposes only and is not part of any contract between RL and buyer and does not constitute a warranty that Product will conform to the sample or model. No affirmation of fact or promise made by RL, whether or not in RL's Quotation, shall constitute a warranty that Product will conform to the affirmation or promise. Unless otherwise specified in writing in documentation shipped with Product or otherwise agreed by RL in writing, RL does not provide service or support for custom products or other products made to buyer's specifications. THE WARRANTIES IDENTIFIED IN THE FIRST SENTENCE OF THIS PARAGRAPH ARE RL'S SOLE AND EXCLUSIVE WARRANTIES WITH RESPECT TO PRODUCT AND ARE IN LIEU OF ALL OTHER WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, ALL OF WHICH OTHER WARRANTIES ARE EXPRESSLY DISCLAIMED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR REGARDING RESULTS OBTAINED THROUGH THE USE OF ANY PRODUCT (INCLUDING, WITHOUT LIMITATION, ANY CLAIM OF INACCURATE, INVALID OR INCOMPLETE RESULTS), WHETHER ARISING FROM A STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF PERFORMANCE, DEALING OR USAGE OF TRADE.
8. INTELLECTUAL PROPERTY AND RELATED INDEMNITY.
8.1 BY RL. Subject to the restrictions set forth in this Section 8 and provided buyer complies with its obligations in this Section 8, RL agrees to defend buyer, and indemnify buyer from and against any infringement damages finally awarded, in any legal action or proceeding brought by a third party against buyer to the extent that such action is based on a claim that the manufacture and sale of a Product by RL infringes any United States or foreign patent, copyright, trademark or other intellectual property right of such third party if RL had actual knowledge of such intellectual property right and infringement at the time of delivery of the Product to buyer. Notwithstanding the foregoing, RL shall have no liability or obligation under this Section 8 with respect to any claim of infringement based upon: (i) modifications to any Product made by buyer or a third party; (ii) manufacture, assembly, labeling or branding of Product by RL pursuant to specifications or designs or requests for specific labeling or branding furnished by buyer. Notwithstanding anything herein to the contrary, RL shall have no indemnification obligations with respect to Product originating from a third-party and provided under these Terms. Buyer's sole right to indemnification with respect to such third-party Product shall be pursuant to the original manufacturer's or licensor's indemnification obligations, if any, to the extent provided by the original manufacturer or licensor.
8.1.1 Buyer's Obligations. Buyer must notify RL in writing of any claim for which it may seek defense and indemnity from RL hereunder promptly after becoming aware of such claim, make no admission of liability with respect to the claim, and cooperate with and provide reasonable assistance to RL, at RL's expense with respect to reasonable out of pocket expenses paid by buyer to third parties for such assistance, in the defense or settlement of such claim. RL shall have sole authority to defend and/or settle any claim under this Section 8. RL's obligations under this Section 8 are contingent upon buyer's compliance with all of the foregoing.
8.1.2 Remedy for Infringement, Rights of RL, Exceptions. If any Product or portion thereof is subject to a suit or other legal proceeding claiming that the Product or such portion infringes a third party's intellectual property right, or in RL's opinion is (are) likely to become subject of such a claim, RL shall, at its option, have the right to either: (a) procure for buyer the right to continue using the Product; or (b) modify the Product so that it becomes non-infringing; or (c) require buyer to return the Product and upon return, refund to buyer the price actually paid by buyer for the Product, less a reasonable amount for use, damage and obsolescence; or (d) substitute for the alleged infringing Product other suitable, non-infringing Products with comparable functionality.
8.1.3 ENTIRE LIABILITY. THE FOREGOING STATES THE ENTIRE LIABILITY OF RL, AND THE EXCLUSIVE REMEDY OF BUYER, FOR ANY INFRINGEMENT OR CLAIMED INFRINGEMENT OF PATENT, COPYRIGHT, TRADE SECRET OR ANY OTHER INTELLECTUAL PROPERTY RIGHT BY OR IN CONNECTION WITH ANY PRODUCT.
8.2 BY BUYER FOR BUYER'S MODIFICATIONS OR SPECIFICATIONS. If buyer modifies any Product or furnishes RL with specifications or designs or requests for specific labeling or branding, buyer agrees to defend, indemnify and hold RL harmless against all liabilities, damages, costs, expenses and claims arising from or based upon buyer's modifications or RL's manufacture and sale of Product or other performance in compliance with such specifications or designs or requests for labeling or branding.
9. FORCE MAJEURE. RL shall not be liable for any delay or failure of performance, including without limitation failure to deliver or failure to install, where such delay or failure arises or results from any cause beyond RL's reasonable control, including, but not limited to, flood, fire, explosion, natural catastrophe, military operations, blockade, sabotage, revolution, riot, civil commotion, war or civil war, plant breakdown, computer or other equipment failure, unusually severe weather, earthquake or other act of God, power loss or reduction, strike, lock-out, boycott or other labor disputes of any kind (whether relating to its own employees or others), embargo, governmental regulation or an inability or delay in obtaining materials. In the event of any such delay or failure of performance, RL shall have such additional time within which to perform its obligations hereunder as may be reasonably necessary under the circumstances; and RL shall also have the right, to the extent necessary in RL's reasonable judgment, to apportion Product then available for delivery fairly among its various customers in such manner as RL may consider equitable.
10. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT ALLOWED BY LAW, IN NO EVENT SHALL RL BE LIABLE, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, WARRANTY, OR UNDER ANY STATUTE OR ON ANY OTHER BASIS FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, MULTIPLE OR CONSEQUENTIAL DAMAGES SUSTAINED BY BUYER OR ANY OTHER PERSON OR ENTITY ARISING OUT OF OR CAUSED BY PRODUCT, RL'S PERFORMANCE OR FAILURE TO PERFORM ITS OBLIGATIONS RELATING TO THE PURCHASE OF PRODUCT OR PERFORMANCE OF SERVICES, RL'S BREACH OF THESE TERMS, THE POSSESSION OR USE OF ANY PRODUCT, OR THE PERFORMANCE BY RL OF ANY SERVICES, WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT RL IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM OR RELATED TO LOSS OF USE, LOSS OF DATA, DOWNTIME, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR LOSS OF REVENUE, PROFITS, GOODWILL, OR BUSINESS OR OTHER FINANCIAL LOSS.
11. SOLE TERMS; INCONSISTENCIES; ORDER OF PRECEDENCE. These Terms, together with RL's Quotation, any applicable label license or patent statement or other written conditions of use, any other terms and conditions expressly agreed to in writing by an authorized representative of RL (collectively, "RL's, Terms"), and buyer's statement on its purchase order (if accepted by RL) of the name or identity of the Product(s) purchased, quantity, delivery date, bill to and ship to address and, if accurate, price (and only such information on buyer's purchase order), constitute the complete, exclusive and entire agreement between RL and buyer with respect to purchases of Product (unless other terms and conditions are expressly designated to be applicable by RL in writing), and RL's offer to sell Product is expressly limited to such terms. Such terms shall take precedence over and supersede and replace all prior or contemporaneous understandings or agreements, written or oral, and any of buyer's additional or different terms and conditions, which are hereby rejected and shall be void. Buyer's submission of a purchase order or other instrument for or regarding the purchase of Product, whether or not in response to an RL Quotation, shall be deemed acceptance of and agreement to RL's Terms to the exclusion of any other terms and conditions appearing in or referenced in such purchase order (except the name or identity
of products purchased, quantity, delivery date, bill to and ship to address and, if accurate, price) or other instrument, which are hereby deemed to be material alterations and notice of objection to which is hereby given, notwithstanding anything contained to the contrary in buyer's purchase order or other instrument or elsewhere. Any acceptance by RL of any offer of buyer is expressly conditioned on buyer's assent to and acceptance of RL's Terms to the extent they are additional or different terms from those of buyer's offer. Except as otherwise provided in these Terms, in the event of an inconsistency between these Terms and the terms appearing on RL's Quotation or other agreement signed by an authorized representative of RL, the terms appearing on RL's Quotation or such other agreement shall supersede and take precedence over the inconsistent provision(s) of these Terms, and all other provisions of these Terms shall remain in full force and effect.
12. NO IMPLIED RIGHTS. Nothing in these Terms shall be deemed or construed (i) as a license or grant of any intellectual property rights, whether express, implied, by estoppel or otherwise; (ii) to limit RL's rights to enforce its patent or other intellectual property rights, including, without limitation, as to use of any Product beyond that granted under any patent or other intellectual property label license or statement applicable to the Product; (iii) as granting buyer any right to be supplied with any Product or component thereof beyond those ordered by buyer and supplied by RL in accordance with these Terms; or (iv) as a license or grant of any right to buyer to manufacture or to have manufactured any Product.
13. CHOICE OF LAW. Any contract between RL and buyer relating to Product, including these Terms, and any disputes relating thereto, shall be governed by and construed in accordance with the laws of the State of Indiana, U.S.A., excluding both its choice of law provisions and the United Nations Convention on Contracts for the International Sale of Goods.
14. EXPORT CONTROLS. Buyer agrees that it will not export or transfer Product for re-export in violation of any United States laws or the laws of any other jurisdiction, or to any denied or prohibited person, entity, or embargoed country in violation of such laws.
15. MISCELLANEOUS. No amendment of RL's Quotation or these Terms or modification thereof shall be binding unless in writing and signed by a duly authorized representative of both RL and buyer. RL's failure to exercise any rights hereunder shall not constitute or be deemed a waiver or forfeiture of such rights or any other rights hereunder. Headings are included herein for convenience of reference only and shall not constitute a part of these Terms for any other purpose. If any provision of these Terms shall be held to be invalid or unenforceable for any reason, such provisions shall, to the extent of such invalidity or enforceability, be severed without in any way affecting the remainder of such provision or any other provision thereof, all of which shall continue in full force and effect. V0162024
RESOLUTION LABS, LLC SERVICES TERMS AND CONDITIONS
I. General Terms (applicable to all Service Plans and all Services provided on a time and materials basis)
1. Entire Agreement- RESOLUTION LABS, LLC (“Provider”) and customer agree these Terms and Conditions, together with Provider's Quotation, defined below, (collectively, " Terms"), represent the entire agreement between the parties with respect to the subject matter herein and supersedes and entirely replaces (i) any previous agreements between the parties with respect to the subject matter herein and (ii) any pre-printed, standard or other terms set forth in customer's purchase order (if accepted by Provider and except for the statement of services identified and, if accurate, price), or any other document not accepted and signed by an authorized representative of Provider, which are hereby rejected and shall be void. Customer's submission of a purchase order or other instrument regarding the purchase of services in response to Provider's quotation, estimate or any other Provider document (“Quotation”) that includes or incorporates these Terms shall be deemed acceptance of these Terms to the exclusion of any other terms and conditions appearing in or referenced in such purchase order or other instrument. Except as otherwise provided in these Terms, in the event of an inconsistency between these Terms and the terms appearing on Provider's Quotation or other agreement signed by an authorized representative of Provider, the terms appearing on Provider's Quotation or such other agreement shall supersede and take precedence over the inconsistent provision(s) of these Terms, and all other provisions of these Terms shall remain in full force and effect.
2.Acceptance- Provider may accept or reject at its discretion a purchase order for service plans, time and materials maintenance and repair, installation, relocation, or software support, as applicable, (“Services”).
3. Payment Terms- Payment terms are net 30 days from date of Provider's invoice to customer. If payment is not received by the due date, Provider may assess and customer agrees to pay, in addition to amounts owed, a late payment charge at the rate of 1% per month (12% per year) or the maximum legal rate, whichever is less, of the amount due calculated from the original due date to the date of payment. If Provider retains a collection agency and/or attorney to collect unpaid amounts, Provider may invoice customer for, and customer will pay, all costs of collection, including without limitation, reasonable attorney’s fees.
5.Delivery - Provider will use reasonable efforts under the circumstances to provide Services as quickly as possible from receipt of customer’s call into Providers local service center. Provider shall remotely resolve customer request for support Services whenever possible. As necessary, on-site support Services will be scheduled at a time mutually agreed upon by Provider and the customer. It is the customer's responsibility to provide access to the instrument so Provider may complete Services, within the scheduled or guaranteed time period, if applicable.
6. Hours of Operation- Unless otherwise specified in the Quotation, Services are generally provided during normal working hours, Monday through Friday, 9:00 AM to 5:00 PM, excluding holidays. Please see https://resolutionlabs.net/support for regional variations.
7. Guaranteed On-Site Response Time - Services plans with an on-site response time guarantee are only guaranteed for listed locations, as identified by Provider unless specific additional guaranteed response time upgrades have been purchased. For all other locations, on-site response time will be on a reasonable effort basis and prioritized over customers repair calls without a service plan. For Services eligible for guaranteed on-site response time, service calls must be received by Provider's service center before 2:30 PM local time. Calls received after this period will be considered received the next business day. Customer shall provide access to the instrument within the response time guaranteed. (i) On-site remedy for all Services except Service plans - In the event Provider fails to be on-site within the purchased guaranteed response time, except where customer did not provide access to the instrument, customer shall receive full credit for the purchased response time. (ii) On-site remedy for Services plans -
Provider may issue a credit to customer for delay in guaranteed response time or scheduled service, of two (2) business day or more except where delays are a result of non-performance subject to Force Majeure or reasonable access to the instrument was not provided pursuant delivery. Each late day's pro - rated credit is an amount equal to 1/365th of the annual fee for the Service plan covering the respective instrument for which the service call was made. If a Service plan covers more than one instrument, the pro-rata credit is determined by allocating a pro-rata portion of the plan's annual fee to the instrument with respect to which the service call was made. The credit may be used by customer when renewing its current Service plan covering that instrument for a consecutive period, as a credit against plan fees. To be eligible to use the credit, Provider's Service plan administrator must receive notice in writing (e-mail notification is satisfactory) of the customer's intention to use the credit for a renewal at the time of renewal, but in any event no later than fifteen (15) days after the expiration of the Service plan period in which the credit was earned. The credit described above is Provider's sole obligation and customer's sole remedy for failure of Provider to respond within the guaranteed on-site response time where provided for in the Service plan. Provider's Service plan Administrator contact details can be found at https://www.resolutionlabs.net/support.
8. Warranty- Provider warrants that it will provide its Services, as stated in the Quotation relevant to the Services purchased in accordance with the relevant section(s) of the Limited Warranty which can be found in the service agreement signed by duly authorized representative of both Provider and customer. With respect to Software Support Services (as defined below), Provider will make provide such Services in a professional and workmanlike manner, however, Provider does not guarantee that each or any Software support incident is capable of being resolved through Software Support Services. PROVIDER MAKES NO OTHER WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY WITH RESPECT TO ITS SERVICES, WHICH WARRANTIES ARE EXPRESSLY DISCLAIMED. PROVIDER'S SOLE LIABILITY AND RESPONSIBILITY UNDER THIS AGREEMENT FOR BREACH OF WARRANTY IS RE-PERFORMANCE OF THE SERVICES WITHIN A REASONABLE TIME OR RETURN OF THE FEE PAID FOR THE DEFECTIVE SERVICES AT PROVIDER’S OPTION. THESE ARE CUSTOMER'S SOLE AND EXCLUSIVE REMEDIES FOR ANY BREACH OF WARRANTY.
9.Indemnification- Provider will indemnify and hold customer harmless from and against any and all claims for injury or death of persons, or damage to tangible property, occurring while Provider personnel are on customer's premises performing Services to the extent caused by the negligent acts or negligent omissions of Provider, where Provider is given prompt notice of any such claim and the opportunity to control the defense and settlement of same.
10. Limitation of Liability- TO THE FULLEST EXTENT ALLOWED BY LAW, IN NO EVENT SHALL PROVIDER BE RESPONSIBLE OR LIABLE, WHETHER IN CONTRACT, TORT, WARRANTY OR UNDER ANY STATUTE OR ON ANY OTHER BASIS, FOR SPECIAL, INDIRECT, INCIDENTAL, MULTIPLE, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, FAILURE TO PERFORM SERVICES, OR OTHERWISE, EVEN IF PROVIDER IS ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES; AND IN NO EVENT SHALL PROVIDER BE LIABLE FOR ANY LOSS OR INJURY THAT IS THE RESULT OF INSTRUMENT OR PRODUCT ERROR OR THE FAILURE OF AN INSTRUMENT OR OTHER PRODUCT TO PERFORM IN ACCORDANCE WITH ITS SPECIFICATIONS. WITHOUT LIMITING THE FOREGOING, EXCEPT SOLELY FOR ANY PAYMENTS MADE UNDER PROVIDER'S INDEMNITY SET FORTH IN SECTION 9, PROVIDER'S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THE SERVICES, INCLUDING WITHOUT
LIMITATION SERVICES RENDERED THEREUNDER, OR BREACH THEREOF OR FAILURE TO PERFORM IN CONTRACT, TORT, WARRANTY OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES PAID TO PROVIDER FOR THE UNDERLYING SERVICES.
11. Force Majeure- Neither party shall be liable for delays in performance or nonperformance in whole or in part, or for loss, injury, delay, expenses, damages or other casualty suffered or incurred on account of or due to, any causes that are beyond its reasonable control, such as, without limiting the generality of the foregoing, acts of God, fires, strikes, trade disputes, riots, embargos, earthquakes, storms, pandemics, epidemics, work stoppages, acts of the government, power losses or shortages, or inability to obtain parts or supplies, provided that the foregoing shall not apply to any obligation to pay money due.
12. Miscellaneous - No amendment of these Terms or modification thereof shall be binding unless it is in writing and signed by a duly authorized representative of both Provider and customer. Provider's failure to exercise any rights hereunder shall not constitute or be deemed a waiver or forfeiture of such rights or any other rights hereunder. Headings are included herein for convenience of reference only and shall not constitute a part of these Terms for any other purpose. If any provision of these Terms shall be held to be invalid or unenforceable for any reason, such provisions shall, to the extent of such invalidity or enforceability, be severed without in any way affecting the remainder of such provision or any other provision thereof, all of which shall continue in full force and effect. Nothing in this agreement shall be deemed or construed as a license or grant of any intellectual property rights, whether express, implied, by estoppel or otherwise by Provider, or to limit Provider's rights to enforce its patent or other
intellectual property rights. All underlying Services shall be governed by the laws of the Provider’s local address shown on the Quotation, exclusive of its conflict of laws rules.
13.Assignment- Neither this agreement nor any Service plan is assignable or otherwise transferable by customer. Any assignment or transfer or attempt to assign or to transfer by customer shall be void.
II. Service Plan Terms (only applicable to purchase of a Service Plan)
A. Instrument Service Plan Terms (only applicable to purchase of a Service Plan for instruments)
1.Instrument Recertification - If an instrument has not been under warranty or a Services plan prior to commencement of a newly purchased Services plan, Provider may require instrument recertification on a time and materials basis not covered under the new Services Plan, prior to the effective date of the new Services Plan.
2. Hardware Telephone Support- All calls made to regional telephone support numbers during Provider’s hours of operation where customer left a message for a return call including the caller’s name and telephone number will be responded to within 4 business hours, unless other response time is specified in the Quotation.
3. Planned Maintenance - Customer and Provider will schedule PM Services within a 1-month period of the manufacturer’s recommended PM timeframe or other agreed upon time between customer and provider. Customer shall provide access to the instrument for that visit. PM Services not completed because customer would not provide access at a time reasonable to Provider will be forfeited.
4. Plan Restrictions-
(i) The decision to repair or replace any parts of the instrument will be made by Provider in its sole and reasonable discretion. Parts and components replaced or otherwise utilized in the repair of the instrument may be either new or refurbished at the discretion of Provider. All parts which have been removed and replaced in performance of Services become the property of Provider.
(ii) Service plans do not cover replacement of parts, costs, repairs or adjustments for defects resulting from or necessitated by acts of nature, damage not caused by Provider, accident, neglect, carelessness, misuse, including without limitation: operation with incompatible solvents or samples in the system; operation outside of the environmental or use specifications or not in conformance with the instructions for the instrument system, software, or accessories; improper or inadequate maintenance by the user; installation of software or interfacing, or use in combination with software or products, not supplied or authorized by Provider; or modification, repair, service transfer to another location of the instrument made by the customer, customer's employees, agents or an unauthorized contractor, or intrusive activity, including without limitation computer viruses, hackers or other unauthorized interactions with instrument or software that detrimentally affects normal operations. Service plans do not cover repair or replacement of parts that are radioactive or contaminated with biological, toxic or other dangerous materials or substances. Service plans do not cover parts for any instrument or other equipment other than the covered instrument or equipment as identified in the Service Plan by its specific serial number(s). Service plans do not cover consumables unless otherwise specified in the Quotation. The list of consumables can be found at https://resolutionlabs.net/service- consumables. Service plans do not cover costs, repairs, or adjustments made necessary by connection of the instrument to electrical services or other utilities not in accordance with the installation requirements for the instrument, or by any interruption or surge in voltage (see applicable instrument user manual for specifications).
(iii) Unless otherwise expressly stated by Provider in writing or under the Terms of the purchased Service plan, parts in contact with any liquid are considered wetted and may be deemed user replaceable and not covered by any Service plan, including, but not limited to capillary tubing, filters, gaskets, etc.
(iv) Use of any non-Provider's parts or reagents that deposit or cause to be deposited residual matter in the instrument flow path or that otherwise interrupt the flow path that are reasonably determined by Provider to have caused instrument failure will require remedial repairs of the affected parts to be completed outside a Service plan at Provider's then prevailing rates for billable service. Provider does not warrant parts not purchased from Provider or Provider does not install. These parts are sold “as is”.
(v) Unless otherwise specified in the Quotation, Service plans do not include customer training or services related to the relocation of instruments.
(vi) Ancillary equipment not manufactured by Provider, such as third-party computers, may be excluded from any Service plan at Provider's discretion. Provider will pass on to customer any manufacturer's warranty of any such ancillary equipment, to the extent permitted by the manufacturer.
B. Services Plan Terms (applicable to purchase of any Services Plan)
1. Term and Termination- Unless otherwise expressly stated in the Quotation, the initial term of a Service plan and this agreement is one year, commencing on the date designated by Provider in its Quotation or date of customers purchase order. A Service plan may be terminated by either party upon at least thirty (30) days written notice to the other party. Termination will be effective thirty (30) days after the receipt of such notice, or at a later date if one is so specified in the notice ("Termination Date"). Termination cannot be made effective prior to thirty (30) days after notice is received, provided, however, that Provider may terminate a Service plan immediately in the event that the instrument covered by the Service plan is transferred to another location
(i) Termination by Customer - Except where termination is in connection with the trade-in of a used Provider instrument as provided for in this section, in the event of termination of a Service plan by customer, Provider shall calculate at its sole discretion the total price of Services actually performed and expenses actually and reasonably incurred in servicing the covered product under the underlying Service Plan from its effective date until the Termination Date. Customer's total payment obligation to Provider under this agreement shall equal (1) the amount so calculated or (2) the prorated price of the current underlying Service Plan from its effective date until the Termination Date, whichever is greater, plus twenty percent (20%) of the total contract price for the underlying Service Plan period covered by the customer’s purchase order that would have been paid if the contract had not been terminated. Notwithstanding the foregoing, in no event shall customer’s total payment obligation exceed the total payment obligation for the underlying Service Plan if it had not been terminated by Customer. In the event that customer has made advance payments, any payments made by customer to Provider in excess of the amounts due on termination as described above shall be credited to customer's account within thirty (30) days after the Termination Date toward future purchases of Provider instruments, consumables or Service plans. Any unpaid portion of this amount shall be immediately due upon customer's receipt of an invoice from Provider. No cash refunds will be made due to the early termination by customer of any Service plan. If a Service plan is terminated early in connection with the trade-in of a used Provider instrument for a new Provider instrument, the unused portion of the Service plan will automatically be applied as an extension of the warranty on the new instrument.
(ii) Termination by Provider - In the event of termination of a Services plan by Provider for other than cause, Provider will calculate the remaining unused portion of the Service plan from Termination Date to the end of the Service plan. Any advance payments made by customer to Provider for that period shall be credited or refunded at Provider’s sole discretion within thirty (30) days after the Termination Date. Any unpaid balances owed by customer shall be immediately due upon customer's receipt of an invoice from Provider.
III. Software Support Terms
1. Scope of Software Support Services-
2. Exclusions from coverage - The following services are expressly excluded from Software Support Services: maintenance or repair services. Provider will not be obligated to provide Software Support Services if any malfunction arises from or relates to (a) error or malfunction of any third party software used by customer either separately or in conjunction with Provider's Software, or (b) customer has failed to incorporate the latest Update previously released to customer.
3. Customer Responsibilities - Customer is responsible for any and all restoration or reconstruction of lost or altered files, data, methods, or programs. Customer will maintain and implement a complete data backup, disaster recovery plan, or redundancy plan, appropriate for its business operations. Customer is solely responsible for security of its confidential, proprietary or classified information. Customer will not disclose confidential, proprietary or any information that is subject to intellectual property rights.
